[2018] KEELC 4282 (KLR)
The court found that the applicant failed to enjoin the Registrar of Lands, making it impossible to determine whether proper procedure was followed in registering the restriction or whether the applicant was given a hearing. Additionally, the applicant did not demonstrate any prejudice that would result from the...
Source-derived case information.
- Citation
- [2018] KEELC 4282 (KLR)
- Parties
- Applicant: Paul Muli Muyanga; Respondent: Kaindi Ngui Munuve
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 53 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Remove Restriction
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Land Restrictions, Title Registration, Notice Requirements, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Paul Muli Muyanga
Applicant
Kaindi Ngui Munuve
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Remove Restriction
Legal Issues
- 1 Whether the restriction registered against parcel Nzambani/Kyanika/43 should be lifted.
- 2 Whether the proprietor was notified prior to registration of the restriction.
- 3 Whether failure to enjoin the Registrar of Lands affects the determination of the application.
Ratio Decidendi
The court found that the applicant failed to enjoin the Registrar of Lands, making it impossible to determine whether proper procedure was followed in registering the restriction or whether the applicant was given a hearing. Additionally, the applicant did not demonstrate any prejudice that would result from the restriction remaining in place pending the hearing of the main suit. Consequently, the application to remove the restriction was found to be unmeritorious and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 28th August, 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. MISC. APPLN. NO. 53 OF 2017 (O.S)
PAUL MULI MUYANGA.............................APPLICANT
VERSUS
KAINDI NGUI MUNUVE.........................RESPONDENT
RULING
1. In the Application dated 28th August, 2017, the Respondent/Applicant is seeking for the following orders:
a. That the court orders the removal of the restriction on the title to land parcel No. Nzambani/Kyanika/43 made on 28th June, 2017.
b. That the costs of this Application be borne by the Applicant.
2. The Application is premised on the grounds that the proprietor of parcel of land number Nzambani/Kyanika/43 was not notified of the registration of the restriction; that there was no basis for the registration of the restriction and that the restriction is illegal.
3. In response, the Applicant/Respondent filed Grounds of Opposition in which he averred that there is a competing claim of ownership between the parties herein; that there is a danger that the subject property may be interfered with by the Respondent/Applicant and that the Applicant/Respondent has a good cause.
4. In his Replying Affidavit, the Applicant/Respondent deponed that he caused a restriction to be registered against the suit land after the Respondent/Applicant manifested an intention to sell the land.
5. The Applicant and the Respondent’s advocates filed brief submissions which I have considered.
6. The Respondent/Applicant is seeking to have the restriction that was registered against parcel of land known as Nzambani/Kyanika/43 on 28th June, 2017 lifted.
7. According to the Respondent/Applicant, he was not notified before the said restriction was registered by the Registrar.
8. Pursuant to the provision of Section 76, the Land Registrar may register a restriction on a parcel of land, either with or without the application of any person interested in the land for a particular period or until the occurrence of a particular event.
9. According to the restriction that was registered in respect to the suit land, the same was to remain in force until this suit is heard and determined.
10. The Respondent/Applicant has not enjoined the Registrar of Lands in this suit to enable him respond and explain the reasons that made him register the said restrictions.
11. Having not enjoined the Registrar of Lands in this matter, this court cannot determine if indeed the Registrar of Lands gave the Respondent/Applicant a hearing or not before making the said entry of restriction on the Title Deed.
12. In any event, the Respondent/Applicant, who has deponed that he has no intention of selling the land, has not stated the prejudice that he will suffer if the said restriction remains in place pending the hearing of the suit.
13. In the circumstances, I find the Application dated 28th August, 2017 to be unmeritorious and I dismiss it with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE